Greg Abbott Sues Feds to Get Voter ID Implemented

The Texas attorney general’s office today filed suit against U.S. Attorney General Eric Holder and the Department of Justice to have the state’s controversial voter ID law implemented without further delay.

The law, Senate Bill 14 by state Sen. Troy Fraser, R-Horseshoe Bay, was scheduled to take effect Jan. 1. It requires that voters show a picture ID before casting a ballot. It has been tied up at the Justice Department since July. Under Section 5 of the federal Voting Rights Act, the department reserves the right to review laws that affect voter participation before they are enacted.

“The U.S. Supreme Court has already ruled that voter identification laws are constitutional,” Texas Attorney General Greg Abbott said in a prepared statement. “Texas should be allowed the same authority other states have to protect the integrity of elections. To fast-track that authority, Texas is taking legal action in a D.C. court seeking approval of its voter identification law.”

Abbott's office said that if the department grants the state's request for preclearance, it would dismiss the suit.

The lawsuit is the latest action by the state in its months-long face-off with the federal government, which has refused to render a decision on whether the bill will disenfranchise minority and low-income voters. Opponents of the measure allege those voters don’t have easy access to a photo ID.

1. State of Texas sues in D.C. district court to obtain preclearance of its Voter ID law

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The suit does not challenge the constitutionality of section 5 on a facial basis but does extensively argue that failing to preclear Texas’ voter ID law would raise constitutional concerns, including possible violations of the 10th amendment and the state’s right to equal sovereignty.

"does not challenge the constitutionality of section 5 on a facial basis"

2. Texas, in Important Development, Sues DOJ Over Voter ID Law

Election Law Blog 1/23/12Texas, in Important Development, Sues DOJ Over Voter ID Law and Suggests Voting Rights Act Unconstitutional

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The Voting Rights Act section 5 prevents states with a history of discrimination from making any changes in their voting laws without first getting approval from DOJ or a three-judge court in D.C. The covered jurisdiction has the burden of proving the law will not have the purpose or effect of making minority voters worse off or the law will not be approved. DOJ recently objected to South Carolina’s similar voter identification law, on grounds that minority voters were less likely than white voters to be able to obtain the requisite voter identification. DOJ has been very slow in acting on Texas’s request for preclearance, but most of us expect DOJ will file an objection to Texas’s law as well.

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Today’s filing by Texas takes a slightly different tack. It offers two ways for courts to preclear the voter identification law without striking down section 5 of the Voting Rights Act. First, as TPM explains, Texas argues that the VRA’s established “nonretrogression standard” (i.e., are minorities worse off) should not apply outside the context of redistricting. Second, Texas argues, in multiple ways and across numerous pages, that the Court can avoid the “grave constitutional doubts” raised if section 5 is read to bar Texas’s voter id law by reading section 5 in some narrow way so as to avoid the constitutional problem. The 2009 case, NAMUDNO, was a very questionable application of the “constitutional avoidance” doctrine, and this looks like an attempt for a repeat performance.

The question is whether the conservative majority on the Court wants to kill the Voting Rights Act outright, or let it die the death of 1,000 cuts. South Carolina may offer the Court the former, and Texas the latter.